(concurring specially).
I concur in the result reached by the majority. However, I believe the appeal should be dismissed on the ground that the order from which the appeal is taken is not an appealable order and this court does not have jurisdiction of the subject matter.
The plaintiff commenced an action seeking a permanent injunction against the defendant. The defendant then counterclaimed for a permanent injunction against the plaintiff. Each of the parties also petitioned the court for an injunction pen-dente lite and each obtained an ex parte restraining order pending the hearing on the petition. The notice of hearing on the petitions and the restraining orders were issued in the form of an order to show cause in the nature of a restraining order. The hearings on each order to show cause were set for the same day. On the day of hearing each of the parties appeared and submitted affidavits in resistance to the issuance of a temporary injunction. During the hearing the parties indicated a desire to resume negotiations. The trial court recognized that no meaningful negotiations could be held if both temporary restraining orders remained in effect. It tentatively determined to temporarily dissolve one and temporarily continue the other in effect. The period allowed was two weeks. The order entered states that after two weeks “the said matter will be heard on its merits.” The “said matter” has reference to both petitions for temporary injunction. *395This was made clear. The court said, in explanation of its action :
“ * * * So I am going to dissolve the restraining order for this period. At the end of the two-week period from today, if it is necessary to have a further hearing on this matter, then we can hear it on the merits as to what sanctions may be imposed. If it is necessary at that point to restrain the school board from taking or doing acts which would be considered unlawful or interfering with the North Dakota Education Association, the court will at that time entertain that request.”
Thus, in my opinion, the trial court has not vacated nor refused to set aside the temporary restraining orders previously made without notice, as contemplated by Section 28-27-02(7), N.D.C.C., quoted in the majority opinion. It made no final decision; instead, it retained jurisdiction of all issues.
The order appealed from, in my opinion, is a tentative interlocutory order intended to be effective during the continuance of the hearing on the orders to show cause. The main action was not upon the calendar for trial and could not be reached for decision at this time, and the trial court did not reach a consideration of the petitions for temporary injunctions on the merits.
A tentative order of this character is not infrequently made by a court where, as here, the relief calls for the exercise of judicial discretion for the purpose of informing itself as to its duties and to ascertain what final action should be taken by observing the results of the order while it is in operation. Ordinarily, by oral pronouncement, the ex parte order will be continued in effect while the hearing is continued to another day. The fact that the order is made in writing and signed by the judge does not change the character of the act.
The appellants and the majority have cited Gillies v. Radke, 78 N.D. 974, 54 N. W.2d 155, wherein it is stated in the syllabus that “an order continuing a temporary injunction after a hearing is an appealable order.” [Emphasis added.] In the body of that opinion the court made clear what it meant by the word “after” in the above syllabus. It stated:
“ * ■* * However, both the original issuance of the injunction and its subsequent continuation at the close of the hearing on May 10 were orders issued by a court that had jurisdiction of both the subject matter and the parties. No appeal was taken from the order continuing the injunction, as might have been done under the provisions of Section 28-27-02, NDRC 1943.” [Emphasis added.]
The hearing in this case was not closed and the order appealed from is not “an order made by the district court after a hearing is had upon notice,” as provided by Section 28-27-02(7), N.D.C.C., defining appealable orders. The order appealed from is merely a tentative interlocutory order to remain in effect until such time as the judge who made the ex parte order has a chance to reconsider his decision in an adversary proceeding and makes a final order after the hearing is completed. Such an appealable order would have been entered, had the hearing on the order to show cause been held following the entry of the tentative order setting the matter for hearing on the merits in two weeks. However, no attempt was made to secure an appealable order. The order which was entered from which this appeal is taken was expressly made subject to the further order of the court when the hearing was ordered resumed and, in my opinion, is not an order made after a hearing which vacates or refuses to set aside an order previously made without notice, as defined in the. statute. For similar holdings, see Commonwealth ex rel. Eagen v. Dunmore Borough School Directors, 343 Pa. 440, 23 A.2d 468. This was a proceeding in mandamus to secure a taxpayer the right to inspect the accounts and records of a school *396district. The court issued its writ of mandamus to the members of the school board, commanding them to allow the inspection or to show cause why the relief prayed for should not be heard. After a hearing, the court entered an order continuing the matter until a further order of the court and directed that the board members permit an inspection and examination of the books of the taxpayers or their agents for certain limited hours of each day except Sunday. The Pennsylvania Supreme Court dismissed an appeal from this order on the ground that it was tentative and interlocutory, and therefore not appealable.
In Green v. Green (Tex.), 247 S.W.2d 583, the Civil Appeals Court dismissed an appeal from a judgment or order which on its face disclosed that the trial court had reserved further action thereon to a later date as being interlocutory and not an ap-pealable order.
The majority also cites Subsection 3 of Section 28-27-02, N.D.C.C., to support its decision that the order is appealable. This subsection provides an order which “grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding” is an appealable order. This subsection has no application here. We are concerned with a restraining order the purpose of which is to restrain the opposing party, pending a hearing on the application for a temporary injunction. Restraining orders of this type are provided for by Sections 32-06-06 and 32-06-07. If, after the hearing on the order to show'cause, a temporary injunction is issued, the restraining order ceases to exist by its own limitations. The order which is issued by the court after the close of the hearing may be appealable under either Subsection 3 or Subsection 7. If Subsection 3 is applicable here, as indicated by the majority, then it may logically follow that an ex parte restraining order is also appealable as it is an order which “grants * * * an injunction” in the sense that a restraining order is, in effect, a species of injunction. If this is the intent of the majority, it is, of course, contrary to what we have said in previous holdings, such as Gillies v. Radke, supra, and State ex rel. Olson v. Lynch (N.D.), 138 N.W.2d 785.
In an action for a permanent injunction there may be three types of orders issued, all of which are injunctional in nature. First, there may be an ex parte restraining order which is effective until the court has held its hearing on the order to show cause. The restraining order may be followed by a temporary injunction which will be effective during the pendency of the action and, finally, after the trial of the action, a permanent injunction may be issued. This action is still in the first phase of these processes. We are asked to review the restraining order, which was issued ex parte and still retains its ex parte character. A temporary injunction has not been granted. The process of determining whether it shall be granted was still pending when the purported appeal was taken.
A purported appeal from a nonappeala-ble order does not confer jurisdiction upon the Supreme Court to review the action of the trial court, and the Court will dismiss the appeal on its own motion, whether or not the point is raised by the respondent. Trautman v. Keystone Development Corporation (N.D.), 156 N.W.2d 817; Application of Hvidsten Transport, Inc. (N.D.), 113 N.W.2d 73; Schrock v. Roy (N.D.), 111 N.W.2d 703; Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560; Kennelly v. Northern P. R. Co., 41 N.D. 395, 170 N.W. 868.
The majority has stated that if the trial court is permitted, by continuances, to make temporary orders which are not ap-pealable for short periods of time there is no reason why it could not issue a series of such orders, or to continue such an order for two months instead of two weeks. There are many occasions when a trial court, for cogent reasons, continues a hearing to another day. Such continuance *397must be reasonable as to time and based upon valid reasons. If a party is aggrieved by the court’s continuance because it is unreasonable as to time or there is no just basis therefor, he is not without a remedy. Application may be made to this Court for a supervisory writ, and this Court, under its superintending powers provided by Section 86 of the Constitution, may direct the trial court to resume the hearing, and to act if it finds the trial court has abused its discretion.
KNUDSON, J., concurs in the above.